2022 HB 2087 Requires Review of All Rules and Regulations

Kansas law as amended by 2022 HB 2087 states a rule and regulation may be adopted or maintained by an agency only if it serves an identifiable public purpose to support state law, and the rule and regulation may be no broader than is necessary to meet such public purpose. This section of the bill, now KSA 77-440, requires each state agency that has adopted rules and regulations to submit a report to the Joint Committee on Administrative Rules and Regulations (JCARR) that includes a statement for each rule and regulation as to whether it is necessary for the implementation of state law. Each agency’s report is due by July 15 in the year assigned to the agency, starting in 2023, based on rule and regulation agency number, and every fifth year thereafter.

The bill’s provisions also authorize an expedited revocation procedure for rules and regulations determined to be unnecessary. Additional provisions addressed review of economic impact statements for proposed rules and regulations.

Review Implementation

To expedite agency review and provide information to the JCARR that is comparable among agencies, staff of the Kansas Legislative Research Department (KLRD) developed a spreadsheet for each agency to use in its review. Staff of the Office of the Secretary of State provided information for these spreadsheets, listing the number, title, status, effective date, and authorizing and implementing statutes for each rule and regulation.

Each agency was asked to provide answers to questions regarding the necessity of the rule and regulation; its potential for revocation, including how revocation would affect Kansans; whether the rule and regulation is required for participation in a federal program or authority or for federal delegation of enforcement authority to the State and, if so, any moneys involved; and additional contextual information necessary to understand the necessity of the rule and regulation. These questions were approved by the JCARR in December 2022. In January 2023, spreadsheets were mailed to the agencies whose reports were due July 15, 2023.

Questions for agencies whose reports are due July 15, 2024, have been modified to ask specifically about the public purpose of the rule and regulation and whether it is broader than necessary to meet such public purpose.

Complete agency reports are published on the KLRD website page for the JCARR, under “HB 2087 Reports.”

Agency Responses in 2023

The 20 existing agencies reporting in 2023 reviewed 2,050 rules and regulations and identified 160 that could be revoked under the expedited process. As of late 2023, the Department of Revenue has revoked 31 outdated rules and regulations of the Division of Alcoholic Beverage Control, the Department of Wildlife and Parks has revoked 4 outdated rules and regulations, and the Secretary of State has revoked 1. These agencies used the expedited revocation process of 2022 HB 2087 amendments to KSA 77-426, in subsection (d), and added a notice in the Kansas Register (that is not statutorily required) of the public’s right to request a public hearing on the proposed repeal. [Note: The process for adding, amending, or repealing rules and regulations not identified by KSA 77-440 reviews as unnecessary is outlined in the KLRD memorandum “Legislative Oversight of Administrative Rules and Regulations.”]

Agencies identified 254 rules and regulations for which federal moneys could be in jeopardy under current law if the rule and regulation were repealed and 204 for which the rule and regulation is necessary for federal delegation of enforcement authority to the State. For example, the Department of Agriculture, Division of Animal Health, identified rules and regulations on brucellosis and other animal health issues to which federal enforcement authority and funding are attached.

The agencies described how revocation would affect Kansans. Examples of responses include “revocation of this definition would bring ambiguity and vagueness to the regulations overall,” “improperly collected samples could result in poor quality seed being sold to consumers,” “public safety could be jeopardized from improper design,” “water users wouldn’t have clear guidelines regarding reasonable quantities for irrigation,” and “filers would not know what fee to pay and our office would not know what fee to charge.”

State agencies in Kansas that are responsible for military operations, emergency management, and veterans’ care are embarking on significant capital projects. These agencies include the Adjutant General’s Department and the Kansas Commission on Veterans Affairs Office (KCVAO).

Joint Forces Headquarters

The 2023 Legislature approved expenditures of $17.6 million, all from federal funds, for construction of a new Joint Forces Headquarters (JFHQ) on federal property at the Forbes Field Air National Guard Base in Topeka in FY 2023. The 59,000-square-foot facility will house the office of the Adjutant General, command staff for the Kansas Air and Army National Guard, and other agency services supporting strategic operations and planning.

The two-story structure will include:

• A storm shelter built to Federal Emergency Management Agency (FEMA) criteria;
• Ground-source heat systems; and
• High-efficiency air conditioning.

Funding for the JFHQ is provided through the federal National Defense Authorization Act for FY 2022. Completion of the JFHQ is estimated for October 2024.

State Defense Building Remodel

The Adjutant General’s Department plans to expend $22.6 million, all from federal American Rescue Plan Act (ARPA) funds, to remodel the State Defense Building (SDB) in Topeka in FY 2024. Built in the 1970s to hold the office of the Adjutant General and command staff for the Kansas Air and Army National Guard, the SDB currently houses the Kansas Division of Emergency Management (KDEM) and the State Emergency Operations Center (SEOC). The current configuration lacks capabilities to sustain prolonged operations during emergency activation, sufficient technology, and office and training space.

The remodeled facility will include:

• Expanded offices, planning rooms, and classrooms for KDEM;
• Joint Information Center with press briefing facilities; and
• A newly constructed wing built to FEMA criteria, capable of withstanding 250 mph winds, to house the SEOC and data centers.

ARPA funding for this project was approved by the State Finance Council on December 21, 2022, as part of the State Efficiency and Modernization Program.

New Hays Armory

The 2022 Legislature appropriated $18.1 million, all from the State General Fund, to the Adjutant General’s Department for construction of a new National Guard Armory in Hays. Expenditures include a land purchase and construction of a 49,792-square-foot Readiness Center.

The current armory, located in a flood plain, is more than 60 years old and lacks adequate training space and maintenance bay capacity to store modern military vehicles.

On December 5, 2023, the Kansas Military Board approved the purchase of a 25-acre site located north of Interstate 70 at a cost of $1.3 million, contingent upon the property seller installing utilities connections and annexation into the City of Hays. The site was selected due to the minimal risk of inherent environmental concerns, proximity to I-70, and opportunity for future build-out.

The new armory will house the 997th Brigade Support Battalion of the Kansas Army National Guard and a STARBASE youth program. Project completion is estimated for FY 2028. Plans for disposition of the current Hays armory are in development.

Northeast Kansas Veterans’ Home

The 2023 Legislature appropriated a total of $17.2 million, all from the State Institutions Building Fund (SIBF), to the KCVAO to provide the State’s portion for constructing a veterans’ home in Northeast Kansas. The total project cost is estimated at $49.0 million, with the remaining funding to be provided through a pending application to the U.S. Department of Veterans Affairs (VA).

Proponents for the new veterans’ home indicate such a facility is needed in Northeast Kansas to accommodate a growing population of veterans in that region. KCVAO currently operates veterans’ homes in Dodge City and Winfield.

In March 2021, Executive Order 21-07 directed KCVAO to submit an application to the VA’s State Veterans Home Construction Grant Program. HB 2510 (2022) authorized $17.2 million in bonding to demonstrate the State’s commitment to its portion, which is 35.0 percent of the project cost. However, the 2023 Legislature appropriated the same amount from the SIBF in 2023 HB 2184, rather than issue 20-year bonds.

HB 2184 also transferred 15 acres on the grounds of the Kansas Neurological Institute in Topeka to KCVAO as the site for the new veterans’ home, contingent upon of receipt of federal funding. The site is adjacent to the federal Colmery-O’Neil Veterans’ Administration Medical Center.

The proposed 72-bed veterans’ home will include:

• Administrative offices and dining facilities;
• A common area with a theater and library; and
• Resident households arranged in neighborhoods with shared nursing stations.

Notification regarding the outcome of KCVAO’s application for federal funding through the VA’s competitive State Veterans Home Construction Grant Program is anticipated in May 2024.

What is Delta-8-THC?

Delta-8 tetrahydrocannabinol (Delta-8-THC) is a psychoactive synthetic cannabinoid found in the Cannabis sativa plant that shares similar molecular structures to Delta-9 tetrahydrocannabinol. Concentrated amounts of Delta-8-THC are usually made from hemp-derived cannabidiol (CBD). The main difference between Delta-8-THC and Delta-9-THC is the amount present in the dry weight of the Cannabis sativa plant; however, they also have slight differences in their chemical structure. In terms of treatment and usage, Delta-8-THC is used similarly to Delta-9-THC, with effects including pain reduction, sleep support, increased relaxation, and improved appetite.

What is a Cannabinoid?

According to the Alcohol and Drug Foundation, a cannabinoid refers to every chemical substance, regardless of structure or origin, that joins the cannabinoid receptors of the body and brain and that have similar effects to those produced by the Cannabis sativa plant. Similar to opioids, cannabinoids produce their effects by interacting with specific receptors, located within different parts of the central nervous system.

How is Delta-8-THC extracted?

Though it is naturally occurring, in order to acquire a commercially significant amount of Delta-8-THC, it must be extracted in a lab. To make Delta-8-THC, cannabidiolic acid (CBDA) is first extracted from legal hemp. Next, during the decarboxylation (decarb) process, the hemp material is heated, which converts CBDA to CBD and increases the potency of the extracted material. Once the material is decarbed, multiple methods can be used to remove the CBD from the dried plant material.

Extraction Methods

There are several ways to extract cannabinoids from the cannabis plant, including:

• Solvent-based extractions, in which ethanol is used to “wash,” break down, and extract the hemp material;
• Solvent-less extraction, which requires special equipment but does not require any solvent, making this a “cleaner” method; and
• Oil extractions, which is a type of solvent-based extraction that uses an oil base to slowly heat the material and separate THC and CBD material. The heated, decarbed cannabinoids bind with the fat molecules in the oil, resulting in an oil infused with cannabinoids.

Federal Policy and History

In 1937, production of hemp and marijuana was effectively outlawed in the United States with the passing of the Marihuana Tax Act, under which the importation, farming, ownership, and distribution of marijuana and marijuana products was made illegal if the seller was not registered with the federal government and did not pay the required taxes. The Leary v. United States decision in 1969 found the Marihuana Act to be unconstitutional, and Congress responded in 1970 by replacing the Marihuana Act with the Controlled Substances Act (CSA) while continuing specific nationwide drug bans.
In 2014, former-President Obama established the Hemp Pilot Program through the Farm Bill, which allowed state agriculture departments and research institutions to grow and study hemp. In addition, the 2014 Farm Bill defined the legal THC threshold in industrial hemp to be 0.3 percent or less on a dry weight basis.

On December 20, 2018, former-President Trump signed the 2018 Farm Bill into law, removing hemp and all byproducts of cannabis with less than 0.3 percent THC from the definition of marijuana in the CSA, and removed hemp and hemp seeds from the Drug Enforcement Administration’s (DEA) schedule of controlled- substances. To date, the Food and Drug Administration has not evaluated or approved the usage of Delta-8-THC.

State Regulation of Delta-8-THC

Delta-8-THC cannabinoid products are legal in 30 states, and 5 states have established legislation regulating Delta-8-THC cannabinoid products.

Definition of Marijuana or THC

Sixteen states specifically include “the Delta-8 cannabinoid” in their definition of marijuana or THC, which allows products to be further regulated in accordance with state law.

Processing, Possession, and Use

The following states specifically prohibit the processing of industrial hemp to concentrate the Delta-8-THC cannabinoid: California, Colorado, New York, and North Dakota.

Fifteen states have prohibited the possession and use of Delta-8-THC.

Delta-8-THC in Kansas

Attorney General Opinion 2021-4 (PDF) addresses whether Delta-8-THC products are legal to sell in Kansas and whether a statutory limit exists for the amount of Delta-8-THC in products.

The opinion concluded that Delta-8-THC is considered a Schedule I controlled substance in Kansas. Unless it is derived from industrial hemp and is contained in a lawful hemp product containing not more than 0.3 percent total THC, it is unlawful to possess, consume, or sell. The opinion specified that cigarettes, cigars, teas, and substances for use in vaping devices are not lawful hemp products.

The opinion further concluded that Delta-8-THC derived from any source other than industrial hemp is a Schedule I controlled substance and is unlawful to possess or sell in Kansas.

Medical marijuana use is legal in 38 states and the District of Columbia. Recreational use of marijuana is legal in 24 states and the District of Columbia.

In recent years, several bills were introduced to legalize medical or recreational marijuana use in Kansas. Legislation that would have legalized medical marijuana in Kansas received a floor vote for the first time in 2021, as House Sub. for SB 158 passed out of the Kansas House.

Marijuana Legalization in Other States

Medical Use

Laws in the 38 states and the District of Columbia that provide for comprehensive medical marijuana and cannabis programs meet the following criteria: protection from criminal penalties for using marijuana for a medical purpose; access to marijuana through home cultivation, dispensaries, or some other system that is likely to be implemented; allowance for a variety of strains or products; and allowance for either smoking or vaporization of marijuana products, plant material, or extract.

Another nine states allow the use of low-tetrahydrocannabinol (THC), high-cannabidiol (CBD) products for specific medical conditions, or provide a legal defense for their possession. The following eight states have recently enacted comprehensive medical marijuana laws after previously legalizing low-THC products: Alabama, Florida, Kentucky, Mississippi, Missouri, Oklahoma, Utah, and Virginia.

Recreational Use

As of June 2023, the following 24 states and the District of Columbia have legalized the recreational use of marijuana: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, Virginia, and Washington.

Connecticut, Illinois, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Virginia legalized recreational use of marijuana through the legislative process, while the remaining states used a ballot initiative. In South Dakota, a successful ballot initiative to legalize recreational use of marijuana was ruled unconstitutional by a circuit judge; the South Dakota Supreme Court upheld this decision on November 24, 2021, by a vote of 4-1.

Recent Kansas Legislation

2021-2022

In 2021, House Sub. for SB 158, legislation that would have enacted a medical marijuana regulatory system, received a floor vote in the House of Representatives for the first time and subsequently passed the chamber.

In 2022, the Senate Committee on Federal and State Affairs held hearings on SB 560, which similarly would have enacted a medical marijuana regulatory system.

2022 Special Committee on Medical Marijuana

The 2022 Special Committee on Medical Marijuana met during the interim to receive testimony from state agencies, law enforcement, local government, the business community, and private citizens. The Special Committee recommended the 2023 Legislature consider the information presented to the Committee, and to especially consider the information and perspectives provided on several listed topics, including expungement of marijuana-related convictions, licensing program suggestions, seed-to-sale tracking systems, and taxes, among other items.

2023-2024

During the 2023 Legislative Session, four bills were introduced that would create a medical marijuana regulatory system in Kansas. SB 135 received hearings in the Senate Committee on Federal and State Affairs in March 2023.

One bill, HB 2367, was introduced in March 2023. The bill would create an adult use (recreational) marijuana regulatory system in Kansas. The bill did not receive a hearing during the 2023 Legislative Session.

Medication abortion, also referred to as medical abortion or the abortion pill, is a pregnancy termination method that involves the use of two medications. The U.S. Food and Drug Administration (FDA) first approved medication abortion in 2000. In 2016, the FDA approved a new evidence-based regimen and drug label, which guides current clinical practice. This medication abortion regimen includes two medications: mifepristone and misoprostol.

Mifepristone blocks progesterone, an essential hormone for the development of a pregnancy, and prevents an existing pregnancy from progressing.

Misoprostol is taken 24 to 48 hours after mifepristone and works to empty the uterus by causing cramping and bleeding, similar to an early miscarriage. Within two weeks, a follow-up visit is conducted to confirm the pregnancy was terminated. This medication abortion regimen is approved for use during the first ten weeks of a pregnancy.

Medication Abortion in Kansas

Under current Kansas law, medication abortion is permitted. KSA 65-6724 prohibits abortion after 22 weeks of pregnancy, with an exception for medical emergencies. State law has requirements for accessing abortion procedures, including medication abortions. Before performing an abortion procedure, physicians are required to:

• Have the informed consent of the patient receiving the abortion procedure. If such patient is a minor, the written consent of both of that patient’s parents or the legal guardian is also required;
• Wait 24 hours from the time the patient provides such consent before performing the procedure [Note: A Johnson County District Court Judge temporarily suspended this requirement on October 30, 2023.];
• Inform the patient that they have the right to view an ultrasound image of the fetus at least 30 minutes prior to the abortion procedure, at no extra cost; and
• Inform the patient that they have the right to listen to the heartbeat of the fetus at least 30 minutes prior to the abortion procedure, at no extra cost.

If a medical emergency compels the performance of an abortion, the physician must inform the patient why the procedure is necessary to prevent their death or substantial and irreversible impairment.

2023 Legislation

During the 2023 Legislative Session, HB 2264 was enacted and requires that any facility or clinic that provides medication abortions using mifepristone must post a sign informing patients that it may be possible to reverse the intended effects of a medication abortion induced by mifepristone. The bill also requires that, at least 24 hours before such medication abortion, physicians inform patients of the same possible reversal message both in writing and in person or by telephone. The bill also requires physicians to inform patients in a prescribed manner at least 24 hours before such medication abortion of the same possible reversal message, and that more information is available on the Kansas Department of Health and Environment website.

[Note: A Johnson County District Court Judge temporarily suspended the requirements set forth in HB 2264 on October 30, 2023.]

Use of Telemedicine

KSA 65-4a10(b) prohibits medication abortion from being prescribed and administered via telemedicine. KSA 65-4a10(b) requires the patient and physician to be physically present in the same room when prescribing and administering mifepristone. [Note: On November 23, 2022, a Shawnee County District Judge granted a Wichita abortion clinic’s request for a temporary injunction of this law.]

Medication Abortion in Other States

Most states, as well as the District of Columbia, permit the use of medication abortion. Of the states that permit medication abortion, some have similar requirements for accessing abortion care as Kansas. Kansas is one of 16 states that authorizes only physicians to prescribe abortion medication, and 6 of the 16 states also require the prescribing physician be in the physical presence of the patient.

In 20 states and the District of Columbia, an advanced practice clinician, such as an advanced practice registered nurse (APRN), is authorized to prescribe abortion medication.

Georgia and South Carolina limit the use of medication abortion to the first six weeks of pregnancy, and Indiana limits its use to the first eight weeks of pregnancy. All three states require a physician to prescribe the medication, and Indiana and South Carolina require the physician to be in the physical presence of the patient.

In 14 states, medication abortion is prohibited.

The map below illustrates which states require abortion medications to be prescribed by a physician or require the physician be in the physical presence of the patient.

The Supreme Court of the United States (SCOTUS) is the ultimate appellate jurisdiction for all federal court cases, as well as state court cases that involve questions of Constitutional or federal law.

The SCOTUS begins hearing cases in October of each year and is under no obligation to issue an opinion by a particular date. However, the SCOTUS typically issues decisions before the term is concluded, customarily in June or July of the following year.

This article provides a preview of selected cases before the SCOTUS in the October 2023 term that concern issues recently before the Kansas Legislature.

Americans With Disabilities Act Litigation

Acheson Hotels v. Laufer involves the issue of standing required to sue under the Americans with Disabilities Act (ADA), specifically regarding the standing of a “tester” plaintiff to sue for a civil rights violation if that plaintiff had no intention of visiting the establishment.

Relevant Legislation

The 2023 Kansas Legislature passed Senate Sub. for HB 2016, enacting the Act Against Abusive Access Website Litigation to create a civil action for determining whether litigation that alleges any website access violation under the ADA or similar law constitutes abusive litigation.

Civil Asset Forfeiture

Culley v. Marshall involves the issues of whether the Due Process clause of the U.S. Constitution requires a post-seizure probable-cause hearing take place before a forfeiture hearing, and if so, which speedy trial test should be employed.

Kansas Statutes and Pending Legislation

The Kansas Standard Asset Seizure and Forfeiture Act (SASFA) (KSA 2022 Supp. 60-4101, et seq.) was enacted in 1994. During the 2023 Legislative Session, a hearing was held on HB 2380, which would amend several provisions of SASFA. HB 2380 is currently in the House Committee on Corrections and Juvenile Justice.

The Kansas Judicial Council Advisory Committee on Civil Asset Forfeiture was convened in summer 2023 to study and make recommendations to the Legislature regarding HB 2380. The Legislative Coordinating Council appointed a 2023 Special Committee on Civil Asset Forfeiture that met to hear the Advisory Committee’s report in December 2023. The Special Committee heard additional testimony and made recommendations concerning the burden of proof and topics for further study. Newly published and archived Judicial Council reports are available on its Studies and Reports webpage.

Social Media

Lindke v. Freed and O’Connor-Ratcliff v. Garnier both involve questions concerning social media activity of public officials, specifically the blocking of constituents from particular profiles and whether the use of social media by those officials constitutes state action for First Amendment purposes.

Murthy v. Missouri involves the issue of whether government agencies may communicate with social media companies concerning content moderation on those platforms.

Relevant Legislation

SB 1 would prohibit internet social media companies from censoring speech made on their platforms. SB 50 would similarly create a crime concerning instances of social media websites entering into contracts with Kansans that allow the site to censor certain speech. SB 1 is in the Senate Committee on Federal and State Affairs; SB 50 was passed by the Senate Committee on Federal and State Affairs and is currently in the Senate Committee on Judiciary.

Second Amendment—Domestic Violence Restraining Orders

United States v. Rahimi involves the question of whether federal law that prohibits possession of firearms by persons subject to a domestic violence restraining order violate the second amendment of the U.S. Constitution.

Relevant Statutes

Kansas firearms restrictions generally follow the federal possession laws found in 18 USC 922. The specific provision at issue in Rahimi regarding domestic violence restraining orders is cited in two Kansas statutes: KSA 2022 Supp. 75-7c04 [disqualifications for receiving or renewing a concealed carry license] and KSA 75-7e06 [disqualification from receiving or renewing a bail enforcement agent license].

KSA 2022 Supp. 21-6301 does not cite the federal statute, but does provide criminal penalties for possession of a firearm while a person is under a similar court order or has been convicted of a domestic violence misdemeanor offense within the preceding five years.